7 Mar 2010

Landlord can seek possession on behalf of tenant: Supreme Court

While it sounds quiet logical so to do, the law it seems was not to clear. This is why the matter traveled upto the Supreme Court, the High Court differing in view of the issue i.e. when a tenant in exclusive possession is dispossessed forcibly by a person other than landlord, can landlord maintain suit against such person for immediate possession? 

The matter traversed the Court as it was argued that that if the tenant of was forcibly dispossessed, the suit under Section 6 of the Specific Relief Act (relating to dispossession from immovable property) could only be filed by the tenant and not by the landlady and the Madras High Court agreed with this interpretation whereas the High Courts of Calcutta, Bombay, Patna, Pepsu and Rajasthan have taken the view that a landlord can maintain a suit to recover possession where his tenant in exclusive possession has been dispossessed forcibly by the act of a third party.

The Supreme Court, affirming the majority view of the High Courts, opined inter alia as under;
A person is said to have been dispossessed when he has been deprived of his possession; such deprivation may be of actual possession or legal possession. Possession in law follows right to possession. The right to possession, though distinct from possession, is treated as equivalent to possession itself for certain purposes. ...
19. A landlord by letting out the property to a tenant does not lose possession as he continues to retain the legal possession although actual possession, user and control of that property is with the tenant. By retaining legal possession or in any case constructive possession, the landlord also retains all his legal remedies. As a matter of law, the dispossession of tenant by a third party is dispossession of the landlord. The word “dispossessed” in Section 6(1) must be read in this context and not in light of the actual possession alone. If a tenant is thrown out forcibly from the tenanted premises by a trespasser, the landlord has implied right of entry in order to recover possession (for himself and his tenant). Similarly, the expression “any person claiming through him” would bring within its fold the landlord as he continues in legal possession over the tenanted property through his tenant. As a matter of fact, on plain reading of Section 6(1), it is clear that besides the person who has been dispossessed, any person claiming through him can also file a suit seeking recovery of possession. Obviously, a landlord who holds the possession through his tenant is competent to maintain suit under Section 6 and recover possession from a trespasser who has forcibly dispossessed his tenant. A landlord when he lets out his property to the tenant is not deprived of his possession in the property in law. 
What is altered is mode in which the landlord held his possession in the property inasmuch as the tenant comes into physical possession while the landlord retains possession through his tenant. The view of Calcutta High Court that where the tenant was forcibly ejected from the land by the third party, it may reasonably be held that landlord has also been dispossessed is the correct view. We find ourselves in agreement with the view of Bombay, Patna, Pepsu and Rajasthan High Courts and hold, as it must be, that there is nothing in Section 6 of the Act to bar a landlord from suing a trespasser in possession even when, at the date of dispossession, the property is in actual occupation of a tenant entitled to possession.

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